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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, November 20, 2015

Ethics alert: the lawyer cannot always make decisions for the client

Normally, the client must live with his lawyer's choices. But not always. In this case, the client says his lawyer made decisions about the case without his knowledge. In particular, the lawyer agreed to drop certain claims. The client found out about this and asked the judge for help. The judge refused to do so. The Court of Appeals says the judge has to convene a hearing to see if the lawyer lacked authority to dismiss these claims.

The case is Gomez v. City of New York, decided on November 5. This is a civil rights case alleging plaintiff was falsely arrested. As Gomez was a City police officer, he was fired as a consequence of that arrest. He sues over his termination also. Gomez hired Reid as his lawyer, who stipulated to dismiss nearly all of Gomez's claims except for the employment claims. When Gomez learned that Reid had dismissed most of his claims, he asked the judge to declare the stipulation null and void because "my lawyer did not have my permission to dismiss all claims." The trial court denied Gomez's request.

The Court of Appeals (Katzmann, Pooler and Chin) says the district court got it wrong. True, the Second Circuit said, "that courts are generally reluctant to recognize attorney error as a basis for relief from an order or judgment." Also, clients are bound by their attorneys' acts. But that rule is not absolute. "Unlike many other acts that an attorney undertakes on a client's behalf, the decision to settle or otherwise dismiss claims 'rests with the client' and is 'not automatically bestowed ... on retained counsel." Here is how the Court of Appeals reasons it out:

The circumstances of this case clearly raised a factual dispute concerning Reid’s authority to dismiss Gomez’s claims. Within days of the stipulation’s signing, Gomez filed a pro se motion for relief from the stipulation and a detailed letter setting forth his assertion that Reid lacked the authority to dismiss his claims. Because the presumption that an attorney‐of‐record has authority to settle a case is rebuttable, the district court should not have denied Gomez’s motion without holding an evidentiary hearing to address Reid’s authority to dismiss Gomez’s claims. And contrary to the City’s contention that Gomez should have come forward on appeal with additional evidence supporting his assertions, Gomez’s detailed letter to the district court below is sufficient to warrant a remand for further development of the record.